In our last two emails, we’ve cited the opinion of experts that the Orphan Works amendment must pass the TRIPS Three-Step Test or risk “inconsistency” with international copyright law. So what is TRIPs? And what is the Three-Step Test?
TRIPs is the international Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). The US is a member. The Three-Step Test is a sequence of three simple questions that let a nation decide whether the exceptions they write into their national copyright laws will interfere with your right to market your work — and therefore make that country a copyright renegade.
Remember, copyright law gives you the exclusive right to decide whether your work is to be exploited – and when, where and under what terms. The law acknowledges narrow limitations and exceptions to that right — so long as the exceptions don’t exceed the constraints of the Three-Step Test. Here’s the test, as described in Article 13 of the TRIPs Agreement:
“Member [countries] shall confine limitations and exceptions to exclusive rights to:
(1) certain special cases
(2) which do not conflict with a normal exploitation of the work
(3) and do not unreasonably prejudice the legitimate interests of the rights holder.”
The TRIPs three-step test is important because if any nations attempt to reduce the scope of their own country’s copyright law by passing laws which exceed the test, the World Trade Organization (WTO) could impose trade sanctions.
We think it’s self-evident that the proposed Orphan Works amendment will interfere with an artist’s “normal exploitation of the[ir] work…and unreasonably prejudice the[ir] legitimate interests…” There’s no other rational way to read a law that could legally force millions of managed copyrights into the public domain.
The IPA is an associate member of the International Federation of Reproduction Rights Organizations (IFRRO). We’ve been providing comprehensive updates on these developments to other members of that body, as well as to the 42 international arts organizations that signed our submission to the Copyright Office last year.
— The Illustrators’ Partnership of America
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